New South Wales Supreme Court CITATION : Knauer v Transfield Pty Limited [2005] NSWSC 176 HEARING DATE(S) : 21-25 February 2005 JUDGMENT DATE : 11 March 2005 JURISDICTION : Common Law Division JUDGMENT OF : Studdert J DECISION : Judgment for the plaintiff in the sum of $1,351,955.50. The defendant is to pay the plaintiff's costs. LEGISLATION CITED : Workers' Compensation Act, s 151I CASES CITED : Van Gervan v Fenton (1991-92) 175 CLR 327 David Justin Knauer (Plaintiff) PARTIES : Transfield Pty Limited (Defendant) FILE NUMBER(S) : SC 20453/02 P.H. Greenwood SC/D. O'Dowd (Plaintiff) COUNSEL : C. Bridge SC/A. Naylor (Defendant) Gillis Delaney Brown (Plaintiff) SOLICITORS : Hicksons Lawyers (Defendant) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J Friday 11 March 2005 20453/02 DAVID JUSTIN KNAUER v TRANSFIELD PTY LIMITED JUDGMENT 1 HIS HONOUR: The plaintiff, David Knauer, claims damages from the defendant, Transfield Pty Limited, after being injured in the course of his employment with the defendant on 26 November 1999. The defendant joined North Sydney Area Health Service as a cross defendant, but when the hearing of this cause commenced Mr Bridge of Senior Counsel, appearing for the defendant, informed the Court that the matter was settled as between the defendant and the cross defendant. Liability as between the plaintiff and the defendant was not contested, and the matter proceeded for the assessment of damages only. 2 The nature of the claim is such as to demand very close attention to the medical evidence in this case. However, I propose at the outset to record in summary form details of the plaintiff's background, the circumstances of the accident, and then the course of the plaintiff's treatment, and post accident history. The plaintiff's background 3 The plaintiff was born on 28 January 1970, so that he was twenty-nine years of age when he was injured and he is presently thirty-five years of age. He came from a stable family background, but left school in year nine at the age of fourteen. Having done so, he worked as an offsider to an electrician and then he had a position with an employer engaged in decking out vans. He worked thereafter as a boner and slicer at the Riverstone Meat Works, before working for Grace Removals for some five or six years. Whilst so employed he had a second position, working part-time as a stock taker for City Ford. 4 The plaintiff commenced to work with an employer described in the evidence as AC Tipping in about 1992. He underwent some training with that employer and was working as a subterranean maintenance engineer. The position involved pipelining, relining sewer mains, cleaning out pipes and associated works. In 1997 the plaintiff started working for the defendant on the construction of the airport link project. He worked underground using a jackhammer and was engaged in roof bolting, railway line laying and other necessary underground works. He was classified as a tunneller. In April 1998 the plaintiff, as a member of the hard rock tunnelling team, received a letter of congratulations for his contribution to the rail link from Mr Scully, the then Minister for Transport (Exhibit E). 5 It was on 20 July 1998 that he began to work at the Northside Storage Project. He was involved in this project from the beginning, being involved in the excavation from the surface level. After the pit bottom was established, he was involved in a variety of activities under ground in his employment as a Tunneller Class 1. This was the work in which he was engaged at the date of the accident. 6 I observe at this point that it would appear that the plaintiff was in constant employment from the time he left school to the time of his accident and there was no suggestion made in the evidence that the plaintiff was other than a satisfactory employee of the defendant up until the time that his accident occurred. The accident 7 On 26 November 1999 whilst the plaintiff was working underground a superior instructed him to take some cutter heads to a large machine being used in the tunnelling process. The plaintiff travelled with the replacement heads via a locomotive, which took him to a point some forty metres from the head of the cutting machine. The plaintiff was left to his own devices to move the cutter heads from the locomotive to the point where they were required in front of the machine, and he endeavoured to roll them along the ground. It appears that in the course of their travel, the heads came into collision and the plaintiff's description as to what happened was as follows (T 10): "I heard a big bang, like a 22 shot, like a gunshot. Then I actually thought it was a hydraulic hose behind me. Because I had seen all this stuff coming past me. It was blood come out of my arm." 8 Since liability was not put in issue, it is unnecessary for me to address further the circumstances of the accident, save to say that one or both of the cutter heads broke up following the impact, and a fragment of metal entered the plaintiff's right arm. The treatment of the plaintiff and his post accident history 9 The plaintiff attended the first aid centre and arrangements were made to transport him to hospital. The plaintiff was admitted to Royal North Shore Hospital and on the day following his admission underwent an operation. The surgeon was Dr Gschwind. I refer to her report of 22 December 1999: "When I saw Mr Knauer at Royal North Shore, he had a small entrance wound overlying the distal and lateral aspects of his biceps but also clear symptoms of ulnar nerve palsy. The x-rays showed a foreign body lodged in the more anterior aspect of his cubital fossa. To rule out an injury to the ulnar nerve, we explored the neurovascular bundle through a longitudinal midline incision in the arm. The tissues looked all normal. Whilst debriding the entrance wound, I did not actually find an entrance into the biceps musculature, but a small hole in the cephalic vein. I ligated the vein. Since I did not find a foreign body, I arranged for a post-operative x-ray of the arm, which showed that the foreign body had obviously dislodged. A chest x-ray then found it situated in his right ventricle. This was confirmed with a cardiac ultrasound, which also confirmed that there was no connection between the right and left ventricles." 10 The foreign body is 5 mm long and 1 mm wide. It remains lodged in the right ventricle until this day. 11 Since Dr Gschwind had been unable to remove any metal and because of what the chest x-ray revealed, Dr Brady, a cardiovascular and thoracic surgeon, became involved. I refer to his report of 6 December 1999, included in Exhibit 1: "…I was asked to see David Knauer following his admission to North Shore Hospital with an injury to his arm. Subsequent to this it was identified that he had a small metallic foreign body which had embolised to his right ventricular chamber. This was seen on echo and reviewed on CXR. It was apparent that the foreign body was small, lodged in the myocardium and would be extremely difficult if not impossible to retrieve from a major open procedure. I therefore elected not to treat him and to place him on antibiotics for a week and as it was a contaminated wound. I reviewed David again today on the 6th of December and from my point of view he remains quite well, repeat CXR shows no change in position of the foreign body. David and his wife are both aware [of] the potential complications from this are extremely small, much less so than any operative intervention would be. I advised him on the possibility of migration to the pulmonary circulation with small chance of lung abscess and haemoptysis. I really don't expect him to have any further problems and I'm quite happy for him to return to work." 12 The plaintiff in his evidence gave the following account of what Dr Brady said to him (T 12): "We have some good news and some bad news. The good news is that we found the other piece of steel. We know where it is. The bad news is that we don't know if you were born with 2 holes in your heart. We need to do another like sort of scan, to see if you were born with 1 hole or 2 holes in your heart. Then, they went for another scan and - Q. Did he tell you what the importance was of the 2 holes or 1 hole? A. Yes, he did. He said that if you were born with 2 holes in your heart, the steel will flow to the heart with the other hole and it could go to your groin or one could go to your brain and you'll lose one side of the body. If you are born with one hole in your heart, it would stay in your heart but it can travel through to your lung. If it travels to your lung, they said, that your lung will get infected to a size of the pea. Then they said: We just operate on your lung and make a small incision and take the steel out of your lung. Basically till now, it will still stay there." 13 The plaintiff said that he was very upset by what he was told. He said that Dr Brady also said (T 13): "He basically said that with the steel that is in your heart, he said: If it does move, it will move to your lung. It is only a small incision. Everything should be okay." 14 The plaintiff said that he was discharged from the hospital for the weekend but was required to return on the following Monday for a further x-ray. Dr Brady saw him again after that procedure and the plaintiff gave this account as to what occurred (T 14): "He [Dr Brady] said that: The steel is still there in your heart. Like I said before,, the steel, if it does move, it will go to me lung. He said: But it shouldn't move. I just turn around and said: Can I please have like a 100 per cent guarantee. Dr Brady said: No one will ever you a 100 per cent guarantee because it could move in 10 days, 10 weeks time, ten years. We don't know. If it does move, then it will move. Q. Did he say what you should or should not do? A. He did. I said, like, I like a lot sport, rock climbing, kick boxing and a lot of other activities. He said: Most definitely not. I said: What happens if something goes wrong, if someone hits me. He said: Just make sure no one hits you in the chest. I thought 'great. Thanks'." 15 Thereafter the plaintiff saw his own local doctor, Dr House, on 7 December 1999. The plaintiff was complaining of pain on the ulnar side of the right forearm and also shortness of breath on exertion. Dr House referred the plaintiff to Dr Abraham, who gave the plaintiff much the same advice as Dr Brady had given him. A report from Dr Abraham is in evidence, and in it Dr Abraham records that he reassured the plaintiff "that even if the fragment moved, it would only cause a very small amount of myocardial damage or if it embolised to the lung would cause area of lung damage." 16 I observe at this point that I am satisfied on the evidence that despite the assurances given by Dr Brady and by Dr Abraham, the plaintiff's anxiety about the presence of the metal continued. 17 The plaintiff went to Wagga to stay with his girlfriend, having an accident on the way, which accident he claimed occurred after he suffered an episode of chest pain. Whilst in Wagga, the plaintiff's girlfriend broke off the relationship and the plaintiff said that he drove off a bridge after that. The plaintiff said that at the time he was very emotional and very embarrassed about his position and about the steel in his heart. 18 After returning to Sydney, the plaintiff continued to see Dr House, and Dr House referred him to a respiratory physician, Dr Despas, and to a psychiatrist, Dr Napper. 19 Dr Despas obtained a history from the plaintiff of breathlessness on exertion, and of concern about the steel in his heart. Following testing Dr Despas reported on 29 February 2000: "His breathlessness cannot be explained by any cardiorespiratory dysfunction, it has a non organic cause. It appears to have been related to the injuries sustained on the 26th of November 1999 but as stated the breathlessness is not due to heart or lung disease as a consequence of the injury. It is functional or so-called behavioural anxiety and the prognosis for the breathlessness depends upon the success with which those causes can be managed." 20 Dr Napper became the plaintiff's treating doctor on 9 February 2000, recording that the plaintiff had anxiety symptoms which included tension headaches, night sweats and recurrent rashes. Dr Napper felt that the plaintiff had a condition of post traumatic stress disorder and the plaintiff was prescribed Inderal, which his local doctor, Dr House, described as suitable in easing panic attacks. Dr Napper also prescribed Zoloft, an antidepressant. Cipramil was later substituted. 21 On 20 March 2000 the plaintiff endeavoured to return to work at the Northside Project. He said that he was experiencing aching in the arm with pain extending to the shoulder. Dr Gschwind referred the plaintiff to a physiotherapist, but that treatment was unsuccessful. Following his return to work, the plaintiff was supposed to be on light duties but he complained that he was required to do some heavy work as well as operating a loader. He complained that the work hurt his arm. He was then given duties with a broom. He said that when he worked, and he was working four hours a day, three days a week, he felt very tired and very sore, and he said he became very sick with night sweats and dreams, dizziness, chest pains and pains all over the body (T 18). Eventually, the plaintiff collapsed when he was walking to the crib room from a loader. His local doctor told him he was unfit for work. That first attempt lasted, with interruptions, for a period approaching two weeks. 22 At the end of May 2000 the plaintiff made another attempt to return to work, this time at the defendant's depot at White Bay. He said that he was required to do odd jobs there before being put on duties as a dogman in connection with crane work. This involved manhandling heavy chains and he was unable to do the work. He was told to leave if he could not do that work. The plaintiff's employment with the defendant terminated as from 18 August 2000. 23 The plaintiff said that night sweats had started a couple of weeks after the accident and that he experienced night sweats when he was working. He said they have persisted up until the present time with varying frequency. 24 The plaintiff formed a relationship with Samantha Skippen in March 2000 and married her on 5 April 2001. The evidence satisfies me that the plaintiff's wife has been and continues to be very supportive of him, and I shall refer to her evidence and that of her father presently. 25 Shortly after their marriage the plaintiff was admitted to St John of God Hospital where he remained from 30 April until 1 June 2001. By the time the plaintiff was admitted to St John of God Hospital, Dr Napper diagnosed the plaintiff's condition as being that of an adjustment disorder with depression and anxiety, which he associated with the accident at work. Immediately before that admission, the plaintiff's condition had deteriorated with increasing depression, irritability, frustration and anger. 26 After discharge from St John of God Hospital, the plaintiff started to see a psychologist, Ms Gabriel. Ms Gabriel first saw the plaintiff on 7 June 2001 and continues to see him at the present time. In all, this psychologist has now seen the plaintiff some fifty-three times. I will refer to her evidence later. Her clinical notes (Exhibit M) record the persistence of complaints. 27 The plaintiff did obtain work with a demolition company in September 2001. The work involved operating an excavator on the demolition of a house. The plaintiff said he lasted for but three hours. He complained his arm became sore, he became very tired and very weak and went home exhausted. Shortly thereafter, the plaintiff obtained employment with Sydney Water, putting in underground water pipes and fixing old water mains. He did this work for four days and then became sick. He said he had very bad sweats, headaches and pains in the chest. He also experienced dizziness. The plaintiff did not continue in this position. 28 In October/November 2001 Mr Mulqueeny, a friend of Ms Skippen for some ten years, offered casual work to her and to the plaintiff. The work was in Melbourne and the plaintiff was engaged as a general hand. Mr Mulqueeny described the plaintiff as "extremely enthusiastic and exceptionally capable" to begin with, but he only persisted for two or three days. When next seen by Mr Mulqueeny some days later, the plaintiff was observed to be pale and lethargic, and the plaintiff informed Mr Mulqueeny he was incapable of continuing with the work. 29 I will return to the plaintiff's efforts to work later. According to the plaintiff, complaints of the type to which I have already referred have persisted to the present time. Efforts to pursue physical activity have continued to produce symptoms: he has suffered from diarrhoea; he becomes angry with his wife; he experiences dizziness; he experiences chest pain; he lacks libido; he is frustrated and distressed because he cannot work. 30 The plaintiff became dissatisfied with Dr Napper and asked to be referred to another specialist. Dr Koller first saw the plaintiff in October 2001 and has seen him and treated him since that time. After the plaintiff was unsuccessful in obtaining a position with Blacktown Council in the latter part of 2002, Dr Koller advised the plaintiff against seeking further employment, and the plaintiff has acted on that advice. 31 Since that time the plaintiff has occupied himself in the home environment. He has done some manual work for his father-in-law. He has washed the household cars, and he says he has remained frustrated about his inability to work. 32 Thus far I have dealt in summary form with what has occurred since the plaintiff sustained his accident. 33 The case which is presented on his behalf is that the plaintiff has been unable to work in the past apart from the limited occasions on which he has worked, and that it is unlikely that he will work in the future. The claim is for very substantial damages indeed, including a claim for domestic assistance past and future. 34 Obviously a threshold issue presents itself, and that is whether or not the plaintiff is to be accepted in his account. The plaintiff has been seen by many, many doctors. Exhibit D, tendered on behalf of the plaintiff, contains many medical reports. So also does Exhibit 1, tendered on behalf of the defendant. 35 Amongst the reports tendered by the defendant, the issue of malingering is considered. Dr Lee, following an assessment on 18 August 2004, stated: "The fact that this case has yielded so many differences of opinion suggests that the possibility of malingering cannot be easily rejected." Dr Roberts, who assessed the plaintiff on the defendant's behalf in October 2001, again on 16 January 2003, and again on 13 August 2004, has reported that he considers there is evidence of malingering. However, whilst the issue of malingering has arisen in the medical reports presented, the plaintiff was not cross examined at this trial in such a manner as raised an issue of malingering or conscious exaggeration, and neither was his wife. The same may be said also concerning the plaintiff's father-in-law who gave fairly detailed evidence of his observations of the plaintiff since March 2000. Mr Bridge fairly and properly acknowledged that on the evidence presented no case of malingering or conscious exaggeration was pursued. 36 My assessment of the plaintiff in the witness box was that he endeavoured to give his evidence in an honest way. There were a number of occasions on which the plaintiff became tearful, but I have no reason to doubt the genuineness of those tearful episodes. 37 Moreover, the plaintiff's evidence finds much support in the evidence of his wife and in the evidence of his father-in-law. To a short review of such evidence, I now turn. 38 Samantha Skippen gave evidence, consistently with that of her husband, that they have lived together since March 2000 and that they married on 5 April 2001. Ms Skippen's work history until shortly before her marriage to the plaintiff was one of regular employment and included postings to responsible positions. Having left school, Ms Skippen did secretarial training and then a management training course. Ms Skippen spent three years six months in London, initially performing secretarial work and then work in what was described as "desktop publishing layout and design". Upon return to Australia, Ms Skippen did secretarial work and then a Real Estate Institute course. After that she worked for four years in commercial real estate. In March 1998 Ms Skippen obtained employment as the Implementation Manager for the Northside Storage Tunnel Project. It was here she met the plaintiff. Her description of her managerial duties (at T 82) conveys the impression that hers was a very responsible position. However, Ms Skippen finished this work in September 2000, determining at that time to concentrate on assisting the plaintiff to find some employment. 39 Ms Skippen said that from the time her association with the plaintiff began in March 2000 the plaintiff was complaining of constant pins and needles in his elbow and pain in his neck and shoulders. He attempted to return to work with Transfield on 20 March 2000 but slept long hours and often during the night sweated profusely. There were occasions when Ms Skippen had to change the sheets two or three times per night. This sweating has persisted to the present time, particularly after a day of physical activity. 40 Following the termination of his employment with Transfield on 20 August 2001, Ms Skippen assisted her husband in trying to find employment. Searches for positions were made in the newspapers and Ms Skippen logged on to the internet. A list of possible employers was kept and the plaintiff faxed through copies of his CV, and when the opportunity presented spoke to representatives of potential employers on the telephone. 41 According to Ms Skippen, the plaintiff had "good and bad days" in the job search period. On the bad days he would be anxious and withdrawn, complain of nausea and suffer night sweats. 42 From March until July 2000 the plaintiff and Ms Skippen lived with her parents. In July 2000 the couple moved to a rented house at Putney and stayed there for about twelve months. Ms Skippen said that the plaintiff's moods varied, that he was anxious and that he cried. The sweating continued there. Ms Skippen said that the plaintiff did work in the garden at Putney, such as mowing the lawn and clearing out weeds. This made him very fatigued. After a time the plaintiff said he was unable to do that work. 43 Ms Skippen said that the plaintiff was seeing Dr Napper, and then she described his behaviour in the months preceding the marriage on 5 April 2001 as erratic. He expressed his frustration that he was unable to find work and he became very angry. 44 After the marriage, the couple went to Tasmania for their honeymoon and for Ms Skippen to drive in the Targa car rally. Shortly after their arrival in Tasmania, Ms Skippen said the plaintiff became very agitated and accused her of having an affair with her navigator. His mood was such that Ms Skippen arranged for her husband to fly back to Sydney to be met by his brother. Ms Skippen returned from Tasmania five days later and went down to the place where her husband was staying with his brother on the south coast. She said that her husband appeared at that time to be very unwell and cried upon seeing her and clung to her physically. His behaviour remained agitated and bizarre and his threatened to jump off a balcony. He became abusive with her. Ms Skippen arranged for the admission of the plaintiff to the St John of God Hospital, to which I made earlier reference. 45 Following his discharge from hospital, Ms Skippen attended on her husband on a twenty-four hour a day basis for two weeks. Ms Skippen did this on the advice of Dr Napper, because of his expressed concern as to the plaintiff's instability at that time. 46 After that spell in hospital, the plaintiff began to see Ms Gabriel and Ms Skippen attended for some sessions. 47 The plaintiff obtained a disability pension in May 2002, and Ms Skippen a carer's pension. 48 Ms Skippen said that she and her husband returned to live with her father In December 2002. 49 According to Ms Skippen, since the plaintiff last sought employment, he has occupied himself in doing some work around the house. He has continued to have good days and bad days. On bad days, the plaintiff has complained he cannot get out of bed. He has experienced chronic diarrhoea and has complained of feeling anxious and nauseous. He has threatened to harm himself and in the past two years has made that threat some six times. Ms Skippen said that the plaintiff's libido is low, and sexual intercourse occurs no more frequently than once per month. 50 So far as the plaintiff's arm is concerned, Ms Skippen has continued to massage it using a vibrating machine provided by a physiotherapist. 51 No attack was made on the credibility of Ms Skippen and I accept the evidence which was given by this witness, and which I have shortly reviewed. 52 The plaintiff's father-in-law is the finance director of Harvey Norman and has held that position since 1994. Prior to that he was the principal in a firm of chartered accountants for fourteen years. 53 Mr Skippen met the plaintiff in March 2000. He said that he and Ms Skippen lived at his home until July 2000. His first impression of the plaintiff was that the plaintiff was a fit man but he noticed he would become fidgety and frustrated and that he would sweat a great deal. He recalled on one occasion having to throw out a mattress which the plaintiff had used, presumably because of sweat damage. Mr Skippen continued to see much of his daughter and the plaintiff after they moved to Putney, and then the wedding reception was held at Mr Skippen's home. The plaintiff helped in preparing for the wedding over a period of some days. According to Mr Skippen, his son-in-law would be fine to start with but would then disappear after three or four hours activity and would be away for an hour or two. By the third day, the plaintiff was slowing down. The day before the wedding, he said the plaintiff was sick and remained in bed. Mr Skippen observed the plaintiff to become twitchy, and his face changed colour. However, eventually the wedding occurred as scheduled. 54 Mr Skippen then spoke of purchasing a house next door and it required building work. The plaintiff assisted with that work. Mr Skippen said that he gave the plaintiff small tasks to perform, such as removing the carpet, some timber from doors and some demolition of brickwork. Mr Skippen said that the plaintiff started work at speed but generally would only last three or four hours. He found that he could not trust the plaintiff to instruct tradesmen, nor could he trust him to follow directions. For example, he asked the plaintiff to take out part of a kitchen, but the plaintiff exceeded that direction and took out the whole of it. 55 Another activity which the plaintiff pursued was to wash cars. There were five cars in the household. At the most he might wash two cars and he would do an excellent and precise job on them. However, he complained that this activity hurt his arm, and after engaging in this work Samantha would use the physiotherapist's machine to massage his arm and neck. 56 Mr Skippen said that he asked the plaintiff to do the work on the house next door because of the plaintiff's frustration and embarrassment that he was not in gainful employment. 57 Mr Skippen taught his son-in-law to water ski on skis and he said that the plaintiff could only pursue this activity for a maximum of four minutes, complaining of pins and needles in his arm. Mr Skippen spoke of his observations of the plaintiff trying to mow lawns at Putney. He said that he noticed that the plaintiff would become twitchy when he engaged in this activity and normally the next day if Mr Skippen called around to the house at Putney, the plaintiff would be sick. 58 Mr Skippen also gave evidence concerning his perception of the plaintiff's capacity to pursue gainful employment based upon Mr Skippen's observations of the plaintiff since March 2000. However, I shall return to this feature of Mr Skippen's evidence when I am assessing the plaintiff's claim for economic loss. 59 I assess Mr Skippen as being an honest and reliable witness. Indeed, I do not understand Mr Bridge to have suggested otherwise. The medical evidence 60 Although the plaintiff has been seen by many, many doctors on both sides of the record, there were only two doctors who were called to give evidence. In addition, Ms Gabriel, the psychologist, was called. I will review the evidence given by these three witness. 61 Dr House, who has been in general practice for fifty-five years, gave evidence that he has known the plaintiff since his infancy. Taking the period of ten years prior to the accident in November 1999, Dr House said that the plaintiff was always in good health. He said that the plaintiff had had a number of work related injuries but after those injuries the plaintiff had returned to work promptly. The plaintiff had had no serious illnesses. 62 Dr House has seen the plaintiff many times since November 1999 and there are a number of reports in evidence from him, as well as the doctor's clinical notes. 63 Dr House observed that following the accident the plaintiff had recurring bouts of diarrhoea and nausea and beyond that he thought the plaintiff to be "mentally a little strange" (T 188). 64 In February 2000 Dr House prescribed Inderal and by April 2000, Dr Napper was prescribing an antidepressant (see para 20 above). 65 Because of the sweating which the plaintiff was experiencing, Dr House arranged for Dr Jin, a specialist in allergies, to see whether the sweating was an allergic reaction to the steel which had entered the plaintiff's body, but Dr Jin advised Dr House there was no such reaction. Complaints that the plaintiff made to Dr House included nausea, dizziness and headaches. 66 Dr House recorded, on 22 February 2001, inter alia that the plaintiff was suffering from "nerves ++". Whilst the plaintiff was in St John of God Hospital in May 2001, Risperdal was prescribed for him and that prescription was continued thereafter. Dr House considered Risperdal to be an antipsychotic medication used to control hallucinations and bizarre behaviour. 67 In July 2001 Dr House certified the plaintiff as fit for full time employment but he explained that he did so as he considered this would be the best thing for the plaintiff having regard, as I understand it, to the plaintiff's mental condition. Dr House had earlier so certified the plaintiff in March and May 2000 for the same reason. Dr House no longer considers the plaintiff to be fit for work. 68 Dr House expressed his reasons in the following passage (T 195-196): "Q. And Doctor, you have, I think, provided him with a certificate that is he is not fit for work, is that your view? A. That's right. Q. Why? A. I think he suffers from a psychosis. I think physically he is very, very normal. But mentally he, I think, he is psychotic. And I think his psychosis explains all his exhaustion, sweats, and his inability to continue working. I think very much like a schizophrenic, schizophrenics don't face issues. If this is a hurdle in front of them they come to the hurdle and stop and go around it. And David has used excuses not to work, not consciously. But you would find every time he attempts to work after a few days he ends up in bed, which usually a sign of depression, if you like. Or otherwise he has the equivalent of something viral like the flu runny nose or cough and all of the rest. And something seems to happen all of the time with which he explains his inability to work. But a psychotic reaction, it is not a physical thing physically no doubt he can work, but he can't make himself mentally. Q. When you say physically there is not much wrong with him, what about his right arm? A. I think there is a minimal problem with it. It would not cause him problems in a real world if he was mentally fit. Q. And, Doctor, do you see that in your opinion, knowing him for as long as you have, do you see that as likely to change? A. I see no changes, there has been no change in five years. He has not improved in five years. He was a little bit worse at one stage with his admission to hospital. Since then there has been no difference. Q. What about, Doctor, once this court case is over; do you see that will make a significant changes to his condition? A. In the first 12 months before there was any real thought about a court case or anything like that he was bad. He still is no better today. I don't think the court case will influence him a great deal. It has caused him a deal of anxiety and stress. But I don't think it made any real difference to him, to his condition mentally. Q. If he and his wife separated, what would you see as being the likely prognosis for David? A. I think it would be disastrous." 69 At an earlier time Dr House considered that the plaintiff was suffering from schizophrenia but he no longer holds that view. He no longer considers that the plaintiff has been schizophrenic in the past. He accepts the opinion voiced by Professor Snowdon in October 2004 that the plaintiff is suffering from anxiety disorder and major depression with psychotic features. In so doing, Dr House expressed himself as being alert to the circumstance that five different psychiatrists involved in this case have given different diagnoses and that Professor Snowdon himself has given different diagnoses on different occasions. 70 I was impressed by Dr House as a witness who was able to give the Court the benefit of his vast practical experience. 71 Dr Koller has been a specialist psychiatrist for forty-five years. He was first asked to assess the plaintiff in January 2001, being asked for a second opinion at a time when Dr Napper was the treating psychiatrist. Dr Koller saw the plaintiff for the second time after his admission to St John of God Hospital in May 2001. At that time Dr Koller wrote to Dr Napper expressing the view that the plaintiff was suffering from paranoid psychosis which predated his marriage. 72 Dr Koller became the plaintiff's treating psychiatrist after he was discharged from St John of God Hospital but he continued the regime of treatment that Dr Napper had had in place. The plaintiff was prescribed Risperdal as an antipsychotic and Cipramil as an antidepressant. Later the Cipramil was replaced by Luvox, another antidepressant. Dosages have been altered from time to time depending upon the severity of the plaintiff's complaints. In Dr Koller's opinion, the plaintiff will continue to require the medication regime which is in place indefinitely in the future. 73 Dr Koller explained his reason for advising the plaintiff to cease looking for gainful employment in 2002. He said that the experience had been "a waste of time effectively. It was disturbing him. It was too upsetting and seemed to me to be pointless." Dr Koller was alert to the plaintiff's unsuccessful attempts to carry on with work which he did obtain and gave the following explanation for the plaintiff's failure (T 246): "Q. What do you perceive, on the history he gave you, [as] the explanation for his becoming ill, fatigued and unable to carry on with the job? A. In my report I tried to explain the situation of anticipatory anxiety. He has, at the moment he does some big exertion in a job situation and his heart starts to jump and that. He begins to think the metal, the metal, what's going to happen and he's got a few ideas and I don't think any doctors actually reassured him that that piece of metal is okay, don't worry about it, ever, because one doctor I know told him that that metal could move into your lung and you could get a lung infection and so on. As soon as his heart starts bumping under exertion and his pulse goes and so on he then he freaks out, he has an anxiety attack, a panic attack and then he stops. He has headaches and diarrhoea, shows that picture so it's anticipatory anxiety which we've not been able to overcome. It's quite common. I can give you other examples where anticipatory anxiety is. I suppose we all have it. We come to a court of law and I wonder how we're going to go this afternoon, will I impress everybody, will I get it over right and am I helping my party so I've got a bit of anticipatory anxiety and that's it and he goes to bed for a bit of time after it." 74 Dr Koller does not consider that position will change in the future. Dr Koller said (T 247): "Q. Doctor, do you see that position changing in the future, realistically? A. Not really at all. There's another factor that's now crept into the situation that he's got a plethora of skills and the diplomas and he can do this and can do that. He's even a butcher, I see, but those skills will have been lost by now so first of all he's got to go back and learn and things before we can even possibly start anything and I just can't see him going off and learning all these things and then getting a job and maintaining it. If I may just go back to one other thing that may have been lost on it. His mother suffered heart disease and she had surgery and she died from it and I think this slurs this anxiety picture that I'm saying in the background that, you know, this is what happened to mum." 75 The plaintiff had earlier given evidence that his mother, who had had heart surgery, a pacemaker and then a substitute pacemaker, collapsed and died on Christmas Eve in 1997. The plaintiff's distress in giving evidence about this was evident. 76 Dr Koller does not consider that the plaintiff's capacity for employment will alter after this case is over. He sees the future as being the same as the past. In Dr Koller's opinion, the plaintiff will continue to need medication and will continue to need the support of a psychiatrist and a psychologist. Dr Koller considers that the support provided to the plaintiff by his wife is "massive", and that his prognosis would be "terrible" if Ms Skippen was not there to support him. 77 There is in this case a live issue to be addressed as to whether the plaintiff will improve once the court case is over. Plainly, Dr Koller and Dr House do not think so, at least to the extent that the plaintiff will be able to work again. I shall address this issue later, but generally I observe that I was impressed by Dr Koller as a witness. His formal diagnosis is that the plaintiff is suffering "adjustment disorder with anxiety. There are also features of depression and post traumatic stress disorder present" (see report of 6 January 2005). The chief stressor identified by Dr Koller for the development of the disorder is the circumstance that the steel is lodged at his heart (see earlier report of 9 September 2004). 78 Ms Gabriel has, as I observed earlier, seen the plaintiff some fifty-three times since first consulted on 7 June 2001. Ms Gabriel, in her first report of 17 July 2001, obtained a history of night sweats and occasional flashbacks of the workplace accident. The plaintiff was also complaining of feelings of anxiety about the metal lodged in his heart and the possible complication this could have for him in the future. Further issues identified by Ms Gabriel at that time related to his inability to see a purpose in life. Ms Gabriel thought that the plaintiff's symptoms then were consistent with Dr Napper's diagnosis of chronic adjustment disorder with anxiety. Psychological symptoms appeared to Ms Gabriel to evidence a post traumatic stress disorder. 79 On 25 September 2001 Ms Gabriel expressed it to be her opinion that obtaining regular work was "a key factor" in the plaintiff's psychological wellbeing. At that stage Ms Gabriel was reporting to Transfield but Transfield determined that it would not fund costs of psychological consultations after 27 August 2001. 80 According to Ms Gabriel, there has been no significant change in the plaintiff's condition over the years 2003 and 2004. Ms Gabriel noted that on the history obtained the plaintiff's stress was exacerbated whenever he attempted physical activity. Ms Gabriel has noted that the plaintiff has expressed his anger to his wife many times and has resented that he feels himself to be too dependent upon her. 81 Ms Gabriel considers the prognosis to be poor and that the plaintiff will need assistance indefinitely in the future even though when this case is finished a major source of stress will be removed. 82 Ms Gabriel said that she would have grave concerns for the plaintiff if his wife left him because of her role as the plaintiff's primary support person. 83 Ms Gabriel wrote on 21 July 2005: "It is my professional opinion that without ongoing treatment Mr Knauer is at risk of becoming worse. He will need psychological treatment for an extended period of time to assist him to accept his limitations. Mr Knauer further requires treatment to develop a belief in his own value and worth which is not dependent on a high level of physical ability and strength. Ongoing treatment is vital to prevent him getting any worse, and to maintain the gains made so far. Mr Knauer continues to experience periods of anxiety, low self worth and low self-esteem, reduced confidence in his ability and a negative view of his future, which remains uncertain. Given the extent and duration of Mr Knauer's condition it is my professional opinion that his prognosis is poor as I see him as requiring assistance indefinitely. There have been extended periods between consultations when Mr Knauer has attempted to cope and sort out his problems without professional help. This has resulted in his psychological state deteriorating. Upon resumption of more regular counselling, his condition has stabilized with an improvement in his mood and a reduction in his anxiety. Past suicidal ideation are significant risk factors for suicide during periods of stress. The resolution of his legal claim for compensation will remove one major source of stress. This will not resolve the fact that he cannot work or sustain even a minimal period of physical exertion without becoming acutely fatigued, dizzy and lightheaded with body sweats." 84 I find myself impressed by the evidence which Ms Gabriel gave. Overall assessment of the evidence 85 I do not propose to record a summary of the very extensive volume of reports to be found in Exhibit D and in Exhibit 1. I have referred in some detail to the evidence of Dr Koller, of Dr House and of Ms Gabriel, the only experts called in this case, as I have found their evidence to be of particular assistance. (a) The plaintiff's physical disabilities 86 I am satisfied that the plaintiff has physical disabilities. There is evidence in this case which persuades me that the plaintiff does have a persisting disability in the right arm. Dr Hughes, who assessed the plaintiff several times, reported in September 2004: "This man's examination and objective investigations demonstrate an intact ulna nerve function and findings consistent with post-operative scarring following exploration of the nerve. Lack of glide of the nerve with elbow movement can result in some ulnar nerve symptoms, but the degree of pain and systemic symptoms would not be attributable to the objective findings. It may well be that his post-traumatic stress disorder amplifies these. I would defer to his psychiatrist with regard to this interpretation. Certainly from the point of view of his discomfort with ulnar nerve distribution sustained and repetitive activities, this could reasonably [be] attributed to his perineural scarring, resulting in an inability to undertake repetitive or sustained use of the arm without some discomfort or paraesthesia. I would not anticipate any further deterioration of the ulnar nerve function with the passage of time. I would attribute these low grade symptoms directly to the work related injury and its associated treatment dated 26.11.99… With regard to work restrictions that specifically should minimize sustained and repetitive use of the arm and the need for frequent rests to minimise his symptoms. The use of vibrating tools should be minimised. This in my opinion does not preclude him from returning to this work entirely, as a suspect an element of living with his discomfort and pain would be required long term. In my opinion the main factor limiting his return to work in fact revolves around his post-traumatic stress disorder. The resolution of this would be the ultimate determination whether this man returns to gainful employment… I determine this man has a 10% permanent loss of efficient use of his left upper limb at or above the elbow, taking into consideration the upper limb as a whole." (The reference to the left upper limb should be a reference to the right upper limb, and the plaintiff is right handed.) 87 Dr Bodel, an orthopaedic surgeon, had assessed the plaintiff in March 2001 on behalf of Transfield. It was his opinion at that time that the plaintiff had some weakness in the right arm, probably due to irritation of the ulnar nerve at the time of the injury. He felt that the plaintiff was not fit for unrestricted work as a tunneller but could tolerate manual tasks with a fifteen kilogram lifting limit. He described the ongoing musculoskeletal disability as "quite genuine". 88 Dr Burke assessed the plaintiff in July 2002 on behalf of the defendant. Contrary to Dr Hughes and Dr Bodel, he did not consider there was any impairment in function in the right upper limb, and I am mindful that Dr House in evidence referred to earlier was dismissive of the physical effect of the arm injury. 89 However, I accept the assessment of Dr Hughes, influenced as I am by evidence the plaintiff and his father-in-law gave. The plaintiff was not challenged on his account of the difficulty he experienced in the right upper limb and whilst it may well be that the plaintiff's psychiatric problems contribute to the extent of the symptoms the plaintiff experiences in the right upper limb, I am satisfied on the balance of probabilities that there is some organic explanation for problems there. Mr Skippen's observations as to the plaintiff's inability to persist in waterskiing, to which I referred earlier, seem to me to be consistent with Dr Hughes' opinion. 90 Whilst Dr Brady and Dr Abraham have sought to reassure the plaintiff that the metal fragment is not likely to move and if it did that the damage it would cause would not be serious, nevertheless the plaintiff does have this fragment lodged in the anterior wall of the right ventricle. The presence of the foreign body has prompted Dr Brady to advise the plaintiff against the further pursuit of sports such as rock climbing, kick boxing and other particularly physical activities. Dr Hickie, cardiologist, reported in July 2004 that the plaintiff was unfit for his pre injury work, and if he did return to work that he should be restricted to work that did not involve heavy physical effort. However, I am not confident that that assessment was based upon the location of the foreign body as opposed to the plaintiff's psychiatric disorder. Be that as it may, Dr Brady's advice remains of significance. (b) The plaintiff's psychiatric condition 91 It is the psychiatric disorder which looms large in this case. I accept, as Dr Despas opined in February 2000, that the breathlessness which prompted the referral of the plaintiff to Dr Despas in his capacity as respiratory physician, had a non-organic basis. 92 Dr Napper's assessment was that the plaintiff's condition was one of post traumatic stress disorder and adjustment disorder with anxiety. I have referred to the later opinion expressed by Dr Koller. I have also referred to one of the diagnoses expressed by Professor Snowdon, with which Dr House agreed. I am, of course, alert to the differing opinion of Dr Roberts, who concluded that the plaintiff was malingering. Dr Lee, who has furnished reports to the defendant, also raised the issue of malingering. He wrote in his later undated report: "The fact that this case has yielded so many differences of opinion suggests that the possibility of malingering cannot be easily rejected. The more closely Mr Knauer's symptoms relate to any defined psychiatric disorder, the more likely they are to be genuine. As they seem to relate to so many potential diagnoses, they are more likely to be feigned…I conclude that the proposition of malingering can not still be rejected…" 93 However, since no submission has been advanced that the plaintiff is malingering or consciously exaggerating his symptoms, I do not find that I am assisted by the opinions expressed by Dr Roberts or Dr Lee. I find the plaintiff to be genuine in his complaints and the evidence I have reviewed satisfies me on the balance of probabilities that the plaintiff does indeed have a very significant psychiatric disorder. I am further satisfied that such disorder has developed in consequence of the employment injury. 94 I find that as a consequence of what happened on 26 November 1999 leading to the steel settling where it did the plaintiff has developed, as Dr Koller has opined, an adjustment disorder with anxiety with features of depression and post traumatic stress disorder. 95 I am satisfied on the balance of probabilities, accepting as I do the evidence given by the plaintiff, by his wife, and by his father-in-law, that the injuries suffered, and in particular the psychiatric disorder, have had a very serious impact upon the plaintiff, affecting his wellbeing, his ability to work and his enjoyment of life. 96 So far as the threats of self harm are concerned, and Ms Skippen said he has threatened this six times in the past two years, I am mindful that Dr Koller said such threats have to be taken seriously. However to date, the plaintiff has not deliberately harmed himself and he has now, and will continue to have in place, a supportive regime, provided by his psychiatrist, his psychologist, his family doctor and his wife. I consider it unlikely that the plaintiff will deliberately harm himself in the future. 97 It seems to me that the role played by the plaintiff's wife is a most important one. Doubtless the demands placed upon her by her husband are stressful, but the probabilities are that Ms Skippen will continue to meet those demands in the future. Damages for non economic loss 98 The statement of claim was issued in this case very shortly before the amendment of s 151G removing any right to damages for the non economic aspects came into force. For the purposes of this cause, s 151G(1) provided: "(2) The amount of damages to be awarded for non economic loss is to be a proportion, determined according to the severity of the non economic loss of the maximum amount which may be awarded. (3) The maximum amount which may be awarded for non economic loss is [$240,350] but the maximum amount may be awarded only in a most extreme case…" 99 Plainly, the impact of this accident upon the plaintiff was severe. Unhappily, on my findings expressed thus far and still to be expressed under the heading "Economic Loss", the plaintiff is not likely to recover from his psychiatric disability and the physical disabilities identified in the evidence are likely to be permanent. The impact of the accident has affected the plaintiff in his work and social environment, and is likely to continue. 100 Having regard to my assessment of the severity of the non economic loss is this case, I consider it to be fair and just to allow to the plaintiff fifty-five percent of the maximum amount set under s 151G(3), and I therefore assess the allowance for non economic loss in the sum of $132,192.50. Economic loss 101 Before proceeding to the assessment of damages under this heading, it is necessary for me to arrive at findings relevant to the calculation of past economic loss and to future economic loss due to loss of earning capacity. 102 The plaintiff's evidence was that he loved the work of tunnelling. He obtained qualifications to operate a wide variety of machines. Mr Jolly, a tunneller who worked with the plaintiff and who was called to provide evidence of comparable earnings, said that the plaintiff had the nickname "Zip Zip". This was "because he was very good at getting gear done and rounding up stuff. He was our gofer. It seemed he would get the gear and come back with it. He was the man." 103 I accept that the plaintiff was, prior to the accident, a hardworking tunneller who was enthusiastic about his work. I am satisfied he has been unfit to do that pre injury work up until the present time, having regard in particular to the onset of the psychiatric condition as defined by Dr Koller. 104 I am also satisfied that it has been the plaintiff's wish since the date of his injury to return to full time employment and that he has been distressed and frustrated by reason of his inability to do so. I accept that he made the various attempts to find work recorded in Exhibits J and K, and I accept that those exhibits record genuine attempts made by the plaintiff with the encouragement of his wife. 105 For the very limited periods that the plaintiff has worked, it is agreed that the plaintiff earned the sum of $5000 in round figures. (a) Past Economic Loss 106 What would he have earned had he remained in his pre injury employment as a tunneller? I am satisfied that Mr Jolly is a comparable earner for the period which the wage records introduced through him establish, that is up until 22 December 2000. I accept that Mr Jolly's average weekly earnings over the period from 27 November 1999 until 16 December 2000 are as set out on Exhibit 3, namely $1353 (omitting cents). I am also satisfied that had the plaintiff not been injured, he would have continued to work as a tunneller on the Northside Project over that same period and that he was likely to earn what Mr Jolly earned. Hence I find that, uninjured between 27 November 1999 and 22 December 2000, the plaintiff would have earned the sum of $74,415 nett. 107 In making this finding I do not overlook the submission by Mr Bridge that in the twelve months before the plaintiff's accident his average weekly earnings were only $844.59 (see Exhibit 2). However, what is evident from that exhibit is that the plaintiff's earnings increased significantly once the tunnelling work became available, and hence I find by reference to Mr Jolly's earnings as a tunneller that the plaintiff would have earned $74,415 until 22 December 2000. However, s 151I fixes a ceiling in respect of a claim for loss of past or future economic loss. Prior to its replacement on 27 November 2001, s 151I provided: " 151I Damages for economic loss – loss of past or future earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or (c) for the loss of expectation of financial support. (2) In the case of any such award, the court is to disregard the amount (if any) by which the injured or deceased worker's net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 35 (even though that maximum amount under section 35 is a maximum gross earnings amount). (3) The maximum amount of weekly payments of compensation under section 35 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 of Part 3 (Indexation of amounts of benefits). (4) This section applies even though weekly payments of compensation to the worker concerned are not subject to the maximum amount prescribed under section 35." 108 The relevant ceiling amounts in the period 4 December 1999 to 22 December 2000 were as follows: 4.12.99 – 30.3.00 $1178.10 1.4.00 – 30.9.00 $1197.20 1.10.00 – 22.12.00 $1210.20 109 To give effect to s 151I, I must heed the cap imposed by s 151I(2). Having done so, I allow for the period 4 December 1999 to 22 December 2000 the sum of $65,600, in round figures. 110 What then is the measure of the plaintiff's loss for the period 23 December 2000 to date? In assessing this, I must again heed the provisions of s 151I. Section 151I requires me to disregard any amount by which the plaintiff's nett weekly earnings would have exceeded the following maximum sums set under s 35 from time to time (even though that maximum amount under s 35 is a maximum gross earnings amount): 23.12.00 – 1.4.01 $1210.20 1.4.01 – 30.9.01 $1237.80 1.10.01 – 31.3.02 $1259.20 1.4.02 – 30.9.02 $1281.30 1.10.02 – 31.3.03 $1299.70 1.4.03 – 30.9.03 $1321.90 1.10.03 – 31.3.04 $1348.60 1.4.04 – 30.9.04 $1373.10 1.10.04 – 31.3.05 $1398.30 111 Would the plaintiff's earnings have been as high as the statutory maximum figures provided for under s 35 and which I have set out above? I have no comparable earnings to guide me beyond the figures provided by Mr Jolly which end on 22 December 2000. I have no comparable earnings beyond that date, although Mr Jolly is engaged in underground work, being the upgrading of the sewerage works at North Bondi. Mr Jolly is presently employed there as a plant operator. Unfortunately, I do not have his earnings to use as a guide. 112 Mr Brown, who was the construction coordinator with the Australian Workers' Union, gave evidence that there has been an abundance of tunnelling work available since 1999. Through him the enterprise agreement on the Cross City Tunnel was tendered as Exhibit L, and a second enterprise agreement relating to the Lane Cove Tunnel was tendered as Exhibit R. The Lane Cove Tunnel work is presently in progress. Those agreements contain some base rates. According to the latter agreement, tunnellers class 1 were paid an hourly rate of $23.80 in May 2004, $24.40 from 30 September 2004, and are expected to be paid $24.88 from 1 June 2005. The Lane Cove rates then approximate to the Cross City Tunnel rates. However, the rates mentioned are base rates, and of particular significance are the opportunities for overtime. There are no figures to assist me as to this. 113 Mr Bridge submitted, once again drawing attention to Exhibit 2, that I ought not to proceed upon the basis that the plaintiff would probably have earned tunneller class 1 rates without interruption up until the present time. In considering that submission I do not ignore the evidence given by Mr Brown that, in his opinion, a tunneller's job is the most dangerous job in the country (T 137). The period for which compensation is to be allowed for the past is a period in excess of five years. I consider it more probable than not that the plaintiff would have continued to work as a tunneller up until the present time. However, there may well have been interruptions in that employment. The plaintiff may have decided to take a break between the end of one project and the commencement of the other, or there may have been other intervening reasons why he would not have continued without interruption in that occupation up until the present time. I propose to allow for such contingencies for the period since December 2000, when I do not have Mr Jolly's earnings to guide me, by a deduction of ten percent on the earnings which he could otherwise have made as a tunneller. I fix those earnings by reference to the maximum figures set by s 35, because it seems to me to be more probable than not that actual nett earnings of tunnellers class 1 over the relevant period would have exceeded those maximum rates. I so conclude because this was Mr Jolly's experience in the period covered by Exhibit 3. 114 As already indicated, I propose to allow for the period up to 22 December 2000 the sum of $65,600. I allow for the period from 23 December 2000 to date the sum of $257,634. I arrive at that sum by using the ceiling figures set by s 35, as adjusted from time to time, and I have introduced a discount of ten percent on the aggregate sum arrived at. I add the sum of $257,634 to the sum of $65,600, and arrive at an allowance for the past of $323,234. I deduct from that sum the plaintiff's actual earnings amounting to $5000, and in consequence the nett award is $318,234. (b) Future economic loss 115 This brings me to the future. 116 Mr Bridge submitted that once this court case is behind the plaintiff there will be an improvement in consequence of which the plaintiff will probably return to employment. Ms Gabriel considered that with the conclusion of this case a very significant stressor will be removed and her evidence was that she would expect a very significant improvement fairly shortly after the case has been completed (T 166-168). Moreover, Ms Gabriel said, and I accept, the plaintiff has "always been motivated to work" (T 169). Dr Richard Chard regarded the resolution of this litigation as being important to the plaintiff's rehabilitation (his report of 8 June 2000) and Mr Cipriani, who made a psychological assessment of the plaintiff for the defendant in August 2004, regarded this litigation as the main barrier to progress at this stage. 117 Dr Koller agreed that patients can recover from adjustment disorders and he recognised that the stress of the litigation is one of the stressors operating on the plaintiff's condition. 118 Dr House considers, as he has done in the past, that the plaintiff is physically fit for work. 119 I accept that the current litigation is a cause of anxiety for the plaintiff as it has been now since the litigation began in 2002. Indeed, I accept that before the litigation began the fact that it had not begun was a cause of frustration and anxiety for the plaintiff. I am satisfied that with the resolution of this litigation a significant stressor will be removed. 120 There may be some improvement in the plaintiff's condition after this litigation has been completed, but I consider it to be more probable than not that the plaintiff will continue to suffer from the condition diagnosed by Dr Koller and that he will remain incapacitated for work. 121 I reach that conclusion influenced by the evidence given by Dr Koller and by Dr House. 122 Dr Koller expressed the view in his report of 6 August 2005 that the plaintiff is unemployable and he adhered to this expression of opinion in the witness box (T 250). He said that he considers that to be a permanent state of affairs. 123 I referred earlier to the evidence which Dr Koller gave concerning the nature of his anxiety condition and the prospects for the future at T 246-247 (see para 73 and 74 above). 124 As I understand the position, to address the anxiety effectively would require the removal of the threat to the plaintiff's heart, that is to say the removal of the metal. However, the medical evidence is to the effect that surgery would not be wise. Dr Brady wrote in December 1999 that the potential complications from leaving the metal in situ were much less than the risks of any operative intervention. Dr Brady also wrote that it was highly unlikely that the metal could be retrieved by surgery. Dr Chard expressed the opinion in June 2000 that "a surgical attempt to remove the foreign [body] could not be justified unless complications directly attributable to it were demonstrated." 125 The position is that so far no specialist has advised the plaintiff that he should undergo surgery for the removal of the foreign body, and, indeed, the advice has been to the contrary. That position is unlikely to change in the future, and as long as the metal remains inside his person the plaintiff's psychiatric condition is likely to persist. 126 Whilst Dr House considered there may be improvement to a degree, it is his opinion that improvement would probably not be significant (T 202). Dr House considers the plaintiff is psychotic and that he will remain psychotic irrespective of the outcome of this case. 127 The opinion of Dr House is well expressed in the passage of his evidence which I set out earlier (at para 68). Plainly, Dr House does not consider that after this case is over the plaintiff will be able to return to work. 128 I accept the evidence of Dr Koller and of Dr House as to the significance of the court case and its resolution. Having done so, I conclude that it is unlikely that the plaintiff will recover a meaningful work capacity after the litigation is behind him. It seems to me, accepting as I do the evidence of Dr Koller and of Dr House about this matter, the plaintiff is going to continue to suffer from this psychiatric condition indefinitely in the future. 129 It follows that the reasons why the plaintiff was advised by Dr Koller not to continue to seek employment will remain valid. Lack of success in finding work would only make his condition worse, as would lack of success in keeping a position. The plaintiff's work history since the accident has been that when he has had work he has been unable to keep it. Efforts to work in the past have exacerbated his position and that would in all probability remain the position in the future. 130 The plaintiff is, of course, a well motivated person and he has the encouragement of his wife and the support of his father-in-law. However, his father-in-law, who I am satisfied would be in a position to find him some work if the plaintiff was capable of working, does not hold out the prospect of employment. Whilst Mr Skippen has authority to find employment opportunities in Harvey Norman, his perception of the plaintiff's capacity leads him to conclude that he could not employ him. Mr Skippen has observed the plaintiff at close quarters. He said he could not employ him as a salesman or as a warehouseman or in any managerial role. He does not consider he could offer him part time or casual employment because his experience leads him to believe that the plaintiff would not be reliable in presenting himself for work on a continuing basis. I accept that Mr Skippen's perception in these matters as expressed by him in the witness box is genuinely entertained, and it is based upon how he has seen the plaintiff behave since March 2000. 131 How then is the plaintiff's future loss to be calculated? 132 It seems to me, having regard to the plaintiff's evidence, that there are two discrete periods to be recognised. The plaintiff gave evidence that he would probably retire at the age of fifty. He said this (T 35): "Q. In terms of looking forward, how long were you proposing to work before retiring? A. As long as - how long do you work for? As long as possible, probably to about 50, as long as they could keep me working till when I'm 50. Q. If they let you work to 50 up until what age would you work? A. Probably 50. Q. In terms of the kind of work, did you hope to continue doing the same kind of work until age 50? A. Yes." Later (T 41): "Q. When you answered before you were thinking of retiring at age 50, what were the assumptions you were making when you were thinking of that? OBJECTION. ALLOWED. A. I'd basically probably work till 50, depends how long I was allowed to do the tunnelling for because we have had a few people, like they work through the tunnelling up to a certain amount of age and I would keep working as long as the tunnelling goes and when I do retire at 50, if I have a family where I need to keep working I will keep working other jobs, depends on tunnelling because I like tunnelling and I would like to stay as long as possible. If I need money or run out of money I will be trying to get back into tunnelling if it is still going or some other job for income after 50." 133 In calculations presented counsel for the plaintiff have invited the Court to adopt the approach of compensating the plaintiff for an ongoing loss of $1393.30 per week for thirty-one years to age sixty-six, that being the maximum weekly rate currently set for the purposes of s 151I(1) of the Workers' Compensation Act. In my opinion, to approach the assessment on such a basis would result in an excessive allowance for the future. The submission ignores the evidence which the plaintiff gave, to which I have referred above, and in any event even had the plaintiff not given such evidence it seems to me to be highly unlikely that the plaintiff would have continued doing tunnelling work, rated by Mr Brown as the most dangerous work in the country, for another thirty-one years. Moreover, although Mr Brown gave evidence that there is an abundance of tunnelling work available at present, it cannot be assumed that had the plaintiff remained fit for such work, work of this type would have been available without interruption for the rest of the plaintiff's working life. Mr Bridge again drew attention to the content of Exhibit 2 which discloses that in the year ended 30 June 1999 the plaintiff's average nett weekly earnings were $850. 134 Of course the plaintiff has skills and certificates qualifying him to operate a variety of types of machinery and had he not been injured he could have utilised those skills in areas other than tunnelling. However, tunnelling is so well paid, no doubt because of the dangers involved in the work and because of the opportunities for overtime. Mr Brown gave evidence that tunnellers are better paid than coalminers. It seems to me that if the plaintiff was required to use his skills above ground he could not expect to earn at the same rate as a tunneller. The evidence is silent as to how much he could currently expect to earn in a surface position. 135 I take these considerations into account in attempting to measure the loss of earning capacity for the next fifteen years to the time at which the plaintiff said he would probably retire, at least from tunnelling. I fix the measure of the ongoing loss at $1100, and the lump sum presently required to compensate for such a loss on the five percent tables for fifteen years is $610,500, subject to a discount for the contingencies. 136 Whilst I have found on the balance of probabilities that the plaintiff will not recover his ability to pursue regular employment, there remains the possibility that he will be able to work from time to time, particularly with the encouragement of his wife. It seems to me, in my assessment of this difficult case, that the possibility that the plaintiff will pursue some work from time to time is best reflected by increasing the discount factor for contingencies to twenty percent. In setting this discount level, I am, of course, mindful of the fact that in my assessment of the ongoing loss on a weekly basis I have already made provision for the uncertainty of regular tunnelling work being available without interruption over a period of fifteen years. On the approach indicated, I arrive at an allowance for the plaintiff to age fifty of $488,400. 137 This leaves the period from age fifty to age sixty-five when, but for the accident and subject to contingencies, the plaintiff would have retained the physical capacity for work. His evidence makes it clear that he would not have carried on tunnelling beyond the age of fifty years even if such work was available to him at that stage of his life, and I do not consider this to be likely. However, would the plaintiff but for this accident have used his physical capacity for work in some other field between the age of fifty and the age of sixty-five? The evidence that the plaintiff gave is not altogether clear, but, as I understand it, assuming there were commitments which called for him to do so, the plaintiff would have worked in some avenues of employment other than tunnelling. This would probably mean some drop in income and there is little in the evidence to guide me for this distant future period. I propose to assess the measure of the loss from age fifty to age sixty-five at $850 per week. Using the deferred tables, I calculate an allowance of $216,061 for this last period. Again, that calculation requires an adjustment for the vicissitudes. There is the added vicissitude to be brought into account here that the plaintiff may well decide, absent any commitments compelling him to do so, that he will retire early. For this period I use a discount factor of twenty-five percent. Accordingly, rounding the calculation off, I allow for the period from age fifty to age sixty-five the sum of $162,046. 138 In all then, the allowance for future economic loss is $650,446. Interest on allowance for past economic loss 139 The parties are agreed that the appropriate interest rate is 3.75%. For the purpose of calculating interest, I deduct from the nett figure of $318,234 (para 114 above) the sum of $49,255, that being the amount the plaintiff has received by way of periodic payments under the Workers' Compensation Act. Accordingly, I award interest at 3.75% on $268,979. I calculate the allowance at $52,955. Lost superannuation benefits 140 In the written submissions presented by the plaintiff, a claim is made for lost superannuation benefits as follows: for the past at a rate of eight percent to 30 June 2002 and thereafter at a rate of nine percent, and for the future at the rate of nine percent. There is no dispute about the rates, but there is an issue, of course, as to the capital sum upon which interest is to be calculated, both as to the past and for the future. 141 For the past the claim for lost superannuation benefits has been calculated at $21,901. Having regard to the allowance I have made for the past and the basis for it, I allow for lost past superannuation benefits the sum of $20,000 in round figures. 142 As to the future, the claim presented is in the sum of $78,062. However, that claim is based upon an ongoing figure of $1040 per week to age sixty-six. Having regard to the assessment I have made for future economic loss and the basis for it, I consider the plaintiff's claim to be too high. I award for the future, $58,545, in round figures, employing the rate of nine percent adopted in the plaintiff's submissions. Medical and hospital expenses (past) 143 The parties are agreed that the defendant has paid medical and hospital expenses amounting to $68,576. The parties are also agreed that there is an additional amount outstanding for treatment of $1141.05 (see Exhibit Q). 144 Omitting cents then, I include in the assessment for out of pocket expenses $69,717. Fox v Wood adjustment 145 The figure is agreed at $8400. Future medical expenses 146 Having regard to the findings I have made as to the likelihood that the psychiatric condition will continue, I am satisfied on the balance of probabilities that there will be a need to continue with the existing regime of supportive treatment. I accept Dr Koller's opinion, supported by the opinion expressed by Ms Gabriel, that the plaintiff would be likely to regress if such treatment did not continue (T 271). The plaintiff will need to see Dr Koller, or some other psychiatrist, he will need ongoing support from Ms Gabriel, or some other psychologist, and he will need reviews by Dr House or some other general practitioner. It has been submitted that allowance should be made for four consultations per annum with Dr Koller, monthly consultations with Ms Gabriel, and four consultations per annum with Dr House. I accept this submission. The plaintiff claims that the appropriate rate for consultations by the psychiatrist and the psychologist is $150 per visit and the rate per consultation for Dr House is claimed to be $60 per visit. Those rates are not challenged, and I adopt them. 147 A claim is made that $20 should be allowed for the cost of medication in the future, continuing the present regime. Since I consider it probable that the need for that medication will continue indefinitely, and there is no challenge to the weekly rate, I am satisfied that I should allow for this. 148 A claim is made for provision for treatment by a physiotherapist or a chiropractor, one visit every three months. This claim is brought concerning the injury to the right upper limb. The evidence does not satisfy me that the maintenance of this claim for the future is warranted, and I do not allow it. 149 According to the life tables, the plaintiff has an expectancy of forty-four years. The plaintiff's reasonable medical and pharmaceutical needs will cost approximately $70 per week. Having regard to the plaintiff's life expectancy, and using the five percent tables, I allow the sum of $66,115 by way of provision for future medical expenses. Griffiths v Kerkemeyer claim 150 The plaintiff seeks to have included in his award an allowance in respect of voluntary assistance he has received from his wife to address his needs in the past, and for the reasonable costs of meeting the like needs in the future. This claim is a substantial one as the plaintiff claims over $90,000 for the past and over $290,000 for the future. That claim is based upon a level of assistance of fourteen hours per week for the past and the same level of assistance for the future. The defendant contends that that claim is excessive. However, agreement has been reached as to the appropriate hourly rates both past and future in the event compensable needs are proved. 151 This is not a case in which medical opinion has been advanced as to the measure of the relevant need in terms of so many hours per week either for the past or prospectively. There are only two experts whose reports have been introduced into evidence who address this question and neither author was required for cross examination. 152 The earliest of the reports is that of Ms Christie, a "managed care consultant", who furnished the defendant's solicitor with a report on 13 August 2003. For the purposes of that report, the author considered various reports, not identified, and attended upon the plaintiff at the home of his father-in-law at Gladesville. Ms Christie described the accommodation which the plaintiff and his wife have there. Ms Christie noted that the plaintiff drives himself to Dr Koller, Ms Gabriel and Dr House when he attends upon those persons for treatment. Ms Christie noted in terms of activities of daily living that the plaintiff was independent in personal care; that he was able to cook for himself when required; that he was independent in meeting his laundry needs; that he was independent in meeting his transport needs; and that he was able to do his shopping, although he tended to have a mental block if he was shopping alone for a list of groceries. 153 When Ms Christie attended upon the plaintiff it was in the setting that his father-in-law engaged a cleaner and household maintenance personnel, such as a pool cleaner, a person to do the lawns, a gardener and a handyman. Ms Christie noted that in the past when the plaintiff and his wife were living at Putney, the plaintiff had to call upon his wife to mow the lawns and estimated the assistance for lawn mowing of two hours per fortnight in the summer months and two hours per month in the winter. However, in Ms Christie's opinion there was no reasonable requirement for ongoing care for which provision should be made under this heading. 154 Ms Piebenga is an occupational therapist who furnished two reports to the plaintiff's solicitors dated 19 September 2003 and 5 October 2004. In the earlier of those two reports Ms Piebenga wrote as to the need for past and future domestic assistance: " 8.2 Past Domestic Assistance (provided gratuitously) Mr Knauer has remained mostly able to complete domestic tasks as previously, with fatigue following activity being the main limiting factor. The Occupational Therapist believes that over the ten month period when Mr Knauer was unwell, he would have at times required assistance with domestic tasks. The level of support required was difficult to ascertain, as it was variable from day to day and week to week. The Occupational Therapist feels that this would have averaged to three hours per week over this period with Mr Knauer requiring no assistance in some weeks and greater than three hours in others… 8.3 Future Domestic Assistance Mr Knauer will remain independent in domestic tasks into the future. The need for assistance in possible periods of exacerbation of his psychological condition or ill health into the future is dependent on his medical status, condition and prognosis. This is beyond the scope of the Occupational Therapist." 155 In her later report, Ms Piebenga again sought to measure the plaintiff's need for domestic assistance and for that purpose had access to recent reports from Dr House and Dr Koller. Ms Piebenga also had a statement from Ms Skippen, which was dated 29 September 2004. 156 The author noted that the plaintiff and his wife reported that for ten months over two separate periods the plaintiff required assistance with toileting and getting into the bath. It was estimated that approximately three times per week the plaintiff required assistance for fifteen minutes per day for these tasks, and Ms Piebenga considered that assistance for fifteen minutes per day three days per week was a reasonable provision for such tasks during periods of exacerbation of the plaintiff's psychiatric condition. 157 Ms Piebenga said this: "In my report dated 19 September 2003, I estimated that during the period when Mr Knauer was unwell (estimated at ten months) that an average of three hours per week of assistance was required for domestic tasks. If it is deemed that this period was greater than three months as per Ms Skippen's statement then this level of support would have been required for the accepted period. Given the medical support for the ongoing nature of Mr Knauer's condition three hours per week of assistance into the future for periods of exacerbation is reasonable. The frequently of exacerbations is beyond the scope of this report and medical opinion regarding this should be sought." 158 In Ms Skippen's statement provided to the occupational therapist for the purpose of the assessment made by Ms Piebenga, Ms Skippen referred to the period following the plaintiff's discharge from St John of God Hospital in 2001 when she gave full time care to the plaintiff. Thereafter, until the plaintiff and his wife returned to live with her father in December 2002, there were periods when the plaintiff was in bed for up to three days at a time. When the plaintiff was in bed, care was presumably provided by Ms Skippen. Ms Skippen's statement went on to inform Ms Piebenga that from the time that she and the plaintiff started to live with her father, she was only required to look after the plaintiff when he became bedridden, which would occur approximately once per week. The measure and extent of the need in those periods that the plaintiff was bedridden was not quantified in Ms Skippen's statement. 159 Dr Koller advised Ms Skippen to attend upon her husband twenty-four hours per day for two weeks after discharge from St John of God Hospital, and I accept that Ms Skippen did so. That attendance is to be brought into account. However, outside that period what has been the need, if any, which attracts an entitlement to damages, and what is the likely relevant need in the future? 160 Ms Gabriel wrote on 21 January 2005: "Mrs Samantha Knauer is her husband's primary carer. She provides him both with physical assistance and most importantly emotional assistance. On numerous occasions when Mrs Knauer was working her husband's condition deteriorated. When he is low and feeling exhausted she has to be there to provide support. It is not practical for him to be alone because he becomes depressed. Mr Knauer tends to internalise his feelings and not share them with his wife at the time because he does not want to worry her and sees it as a sign of weakness on his part." 161 In her evidence also Ms Gabriel referred to the plaintiff's acute dependence on his wife as a primary support person. 162 Dr House referred in his evidence (T 196) to the plaintiff's dependence upon his wife to take his medication. 163 Dr Koller referred in his report of 6 August 2005 to "the enormous support" the plaintiff's wife provides and which the plaintiff, in his opinion, requires. In his evidence Dr Koller referred to the plaintiff's wife as "a massive support" for the plaintiff (T 248). 164 I accept the evidence given by Ms Gabriel, Dr Koller and Dr House concerning the importance of the role which has been played by Ms Skippen. However, how is the compensable need to be measured? The mutual give and take in a marital relationship is to be acknowledged: see the observation in Van Gervan v Fenton (1991-92) 175 CLR 327 of Brennan J at 340-341 and of Deane and Dawson JJ in their joint judgment at 343-344. What is important is to endeavour to determine what needs that have been met by Ms Skippen have been due to the accident and the disabilities resulting from it. 165 The plaintiff said in his evidence that his wife cooks the dinner (T 38). On the other hand, the plaintiff acknowledged (T 39) he does cook sometimes. Indeed, he had said as much to Ms Piebenga (her report of 14 May 2003) and to Ms Christie (her report of 13 August 2003). He said that his wife does the shopping (T 38) and that he forgets things and forgets to take money with him. However, the assessment of Ms Piebenga in her report of 13 May 2003 was that the plaintiff was capable of doing his shopping as required, and he told Ms Christie he participated in shopping, but that he tended to shop with his wife for larger supermarket items and that he tended to have a mental block if shopping alone for a list of groceries. The plaintiff said that his wife massages his arm every day for twenty to thirty minutes, using the vibrating machine. 166 Ms Skippen described what she did for her husband when he came home from St John of God Hospital and she was caring for him intensively for the period of two weeks. She said that she ensured that the plaintiff showered, that he used the toilet, that he had his meals, and that the bed linen was changed as frequently as required. She explained that it was necessary to change the bed linen two or three times per night. As I see it, her evidence conveys the picture that she was virtually nursing the plaintiff full time over this period. 167 As to the use of the vibrating machine on her husband's arm, shoulder and neck, Ms Skippen said that she did this for twenty to thirty minutes on a daily basis. However, the evidence does not persuade me that this is a useful procedure or one which, looking to the future, ought to be provided for in an award. 168 Much of what the plaintiff's wife has done for him in the past and will doubtless continue to do in the future is part of the mutual give and take of a marriage relationship, but I am satisfied that there has been a need for help beyond the normal "give and take", that such need has arisen because of the plaintiff's disability due to the accident, and that the need has been met by the plaintiff's wife. 169 I am satisfied therefore that in the past there has been a compensable need and that that need will continue. However, I find it extraordinarily difficult to measure the compensable need in this case. Plainly the plaintiff has good days and bad days. It is only when there are bad days that the compensable need has arisen. 170 In her later report, Ms Piebenga sought to measure the need allowing for periods of exacerbation at three hours per week. Having reflected on the matter, I consider that is a reasonable assessment, and allows as best one can for the fact that the plaintiff's condition has fluctuated. I think it probable that there have been weeks in the past when the compensable need called for more than three hours per week, but that there have been weeks in the past where no compensable need arose. Three hours per week I regard as a fair average figure. 171 The probabilities are that the plaintiff's condition will continue in the future as it has done in the past. Hence a compensable need in the future has been proved, and again I measure this at three hours per week. 172 Based upon allowing fourteen hours per week, a calculation has been presented to the Court of $91,975.40 for the past. I allow three-fourteenths of that figure for the past, namely the sum of $19,709, rounding the calculation off. 173 The plaintiff has a life expectancy of forty-four years. For the future, it is agreed that any allowable domestic assistance should be costed at $25.93 per hour. The cost of providing for the compensable need for the future is therefore $77.79 per week. The lump sum required to provide that weekly sum for the remainder of the plaintiff's life, calculated on the five percent tables, is $73,473 (in round figures). 174 Calculations presented invited a discount of fifteen percent for the vicissitudes, but I do not consider a discount is called for here. The life expectancy figure is statistically based. The hours required in the future will vary and may average out at more or less than I have allowed for over such a long period as the plaintiff has before him. 175 Similarly I have applied no discount factor for contingencies when arriving at an allowance for future medical and pharmaceutical expenses. Summary of assessment 176 I summarise the assessment of the plaintiff's damages as follows: Allowance for non economic loss $132,192.50 Loss of earnings: Past $318,234.00 Future $650,446.00 Interest on past economic loss $52,955.00 Lost superannuation benefits: Past $20,000.00 Future $58,545.00 Out of pocket expenses $69,717.00 Fox v Wood adjustment $8,400.00 Future medical expenses $66,115.00 Griffiths v Kerkemeyer allowance: Past $19,709.00 Future $ 73,473.00 $1,469,786.50 177 It is agreed that from the above assessment the sum of $117,831 is to be deducted for benefits paid pursuant to the Workers' Compensation Act. Accordingly, the sum for which judgment is to be entered in the plaintiff's favour is $1,351,955.50. 178 I order the defendant to pay the plaintiff's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.